M A H & R M A v H I O [2014] KEHC 4998 (KLR)

REPUBLIC OFKENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 62 OF 2012

M A H..…….………………….1ST APPLICANT

R  M A….………........……….2ND APPELLANT

VERSUS

H  I  O………....…………………..RESPONDENT

RULING

I have been invited in this matter to stay proceedings in High Court Succession Cause No. 1936 of 2011 pending hearing and determination of the appeal filed herein, on the grounds that the two matters relate to the estate one individual,  A H A alias A H A.

I called for the court file in High Court Succession Cause No. 1936 of 2011for the purpose of perusing the same.  The said file was availed to me.

The instant suit is an appeal emanating from a decision of the Kadhi in Nairobi Kadhi’s Court Case No. 223 of 2012.  The suit in Kadhi’s Court Case No. 223 of 2012 had been commenced on 25th July 2012 by way of Originating Summons.  It sought a declaration that the deceased had died a Muslim and he had been survived by his widow, H I O, and children M, A H and K B and A.  The application also sought that the named persons be declared to be the rightful heirs of the deceased and the estate be distributed in terms of Sharia Law.  A determination  was made on 13th August 2012 which gave rise to the appeal.

High Court Succession Cause No. 1936 of 2011relates to the estate of A H A alias A H A.  The cause was initiated on 7th September 2011.  It names H A O, A A H A, I A H A, B A H A and M A H A as the persons who survived the deceased.  A grant was made on 30th January 2012.  It is yet to be confirmed.

I am satisfied that the two causes relate to the estate of the same person, who is expressed in both causes as having died on 2nd May 2011.  There is merit in staying one of the suits to await the determination of the other.  High Court Civil Appeal No. 62 of 2012 is the active suit.  I hereby therefore order that High Court Succession Cause No. 1936 of 2011 be stayed pending the hearing and determination of High Court Civil Appeal No. 62 of 2012.

DATED, SIGNED and DELIVERED at NAIROBI this 30th DAY OF May 2014.

W. MUSYOKA

JUDGE

In the presence of Mr. Kongo advocate for the applicant.

In the presence of Mr. Nyoike  advocate for the respondent.